{ "id": 4189079, "name": "HARRY CLAY, individually and as natural father of BRE CLAY and AUSTIN CLAY, minor children, Plaintiffs-Appellees, v. NEW MEXICO TITLE LOANS, INC., Defendant-Appellant", "name_abbreviation": "Clay v. New Mexico Title Loans, Inc.", "decision_date": "2012-09-20", "docket_number": "No. 33,765; Docket No. 31,356", "first_page": "645", "last_page": "658", "citations": [ { "type": "official", "cite": "2012-NMCA-102" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "96 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577331 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "529", "parenthetical": "discussing the district court's balancing of judicial economy and the rights of the parties with respect to a stay" }, { "page": "1167", "parenthetical": "discussing the district court's balancing of judicial economy and the rights of the parties with respect to a stay" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0525-01" ] }, { "cite": "117 N.M. 602", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552692 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "605" }, { "page": "1269" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0602-01" ] }, { "cite": "157 F.3d 775", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11680321 ], "year": 1998, "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/f3d/157/0775-01" ] }, { "cite": "119 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561211 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "505", "parenthetical": "holding that collateral estoppel applies to arbitration decisions when the arbitration proceedings allowed \"presentation of evidence and argument substantially similar in form and scope to judicial proceedings\" (internal quotation marks and citation omitted)" }, { "page": "952", "parenthetical": "holding that collateral estoppel applies to arbitration decisions when the arbitration proceedings allowed \"presentation of evidence and argument substantially similar in form and scope to judicial proceedings\" (internal quotation marks and citation omitted)" }, { "page": "505" }, { "page": "952" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0500-01" ] }, { "cite": "470 U.S. 213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299026 ], "year": 1985, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/us/470/0213-01" ] }, { "cite": "2011-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250808 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 56" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0398-01" ] }, { "cite": "669 F.3d 202", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3723751 ], "year": 2012, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/f3d/669/0202-01" ] }, { "cite": "2003-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15883 ], "weight": 8, "year": 2012, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 10" }, { "page": "\u00b6 2" }, { "page": "\u00b6 10" }, { "page": "\u00b6 15" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0661-01" ] }, { "cite": "2001-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183132 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0100-01" ] }, { "cite": "567 F.3d 1191", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3650151 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "1198", "parenthetical": "stating that in assessing whether a matter is arbitrable, \"we evaluate the factual underpinnings of the complaint rather than merely considering the labels attached to each of the causes of action it contains\"" }, { "page": "1200" }, { "page": "1200" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "1200" } ], "opinion_index": 0, "case_paths": [ "/f3d/567/1191-01" ] }, { "cite": "950 So.2d 170", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 8320023 ], "year": 2007, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/so2d/950/0170-01" ] }, { "cite": "644 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 5178980 ], "weight": 16, "year": 2007, "pin_cites": [ { "page": "707" }, { "page": "707", "parenthetical": "emphasis omitted" }, { "page": "707-08" }, { "page": "708" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "709" }, { "page": "707, 709" }, { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/sc/373/0144-01" ] }, { "cite": "51 F.3d 1511", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11367523 ], "year": 1995, "pin_cites": [ { "page": "1516", "parenthetical": "holding that it would be \"absurd\" to require arbitration of claims not \"touching specified provisions\" of the underlying contract and that the existence of a contract between the parties was not sufficient to compel arbitration" } ], "opinion_index": 0, "case_paths": [ "/f3d/51/1511-01" ] }, { "cite": "2006-NMCA-086", "category": 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L. Rev. 41", "category": "journals:journal", "reporter": "Mo. L. Rev.", "year": 2012, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "98 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582475 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "332" }, { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0330-01" ] }, { "cite": "363 U.S. 593", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166577 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/363/0593-01" ] }, { "cite": "363 U.S. 574", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166480 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/363/0574-01" ] }, { "cite": "363 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166407 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/363/0564-01" ] }, { "cite": "266 P.3d 633", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "150 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2011-NMCERT-006", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2011-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249741 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0681-01" ] }, { "cite": "475 U.S. 643", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6206747 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "649" }, { "page": "648", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/us/475/0643-01" ] }, { "cite": "537 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9190679 ], "year": 2002, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/us/537/0079-01" ] }, { "cite": "517 U.S. 681", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746265 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "688", "parenthetical": "stating that \"Montana's law plac[ing] arbitration agreements in a class apart from any contract, and singularly limiting] their validity\" conflicts with the Act and is, therefore, preempted (internal quotation marks omitted)" }, { "page": "686-87", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/517/0681-01" ] }, { "cite": "2008-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002330 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0464-01" ] }, { "cite": "2003-NMCA-148", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77181 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0630-01" ] }, { "cite": "460 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188858 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "24" }, { "page": "24-25" }, { "page": "24-25" } ], "opinion_index": 0, "case_paths": [ "/us/460/0001-01" ] }, { "cite": "131 S. Ct. 1740", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 5939512, 12458766 ], "weight": 2, "year": 2011, "pin_cites": [ { "page": "1745" }, { "page": "1745", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/563/0333-01", "/l-ed-2d/179/0742-01" ] }, { "cite": "9 U.S.C. \u00a7\u00a7 1-6", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2006, "opinion_index": 0 }, { "cite": "9 U.S.C. \u00a7 2", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1947, "opinion_index": 0 }, { "cite": "2002-NMCA-030", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183090 ], "weight": 9, "year": 1947, "pin_cites": [ { "page": "\u00b6 51" }, { "page": "\u00b6 51" }, { "page": "\u00b6 52" }, { "page": "\u00b6 55" }, { "page": "\u00b6 57" }, { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 8-11" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0772-01" ] }, { "cite": "2008-NMCA-161", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242714 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0303-01" ] }, { "cite": "2009-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243196 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 18" }, { "page": "\u00b6 30" }, { "page": "\u00b6 21" }, { "page": "\u00b6 25" }, { "page": "\u00b6 21" }, { "page": "\u00b6 32" }, { "page": "\u00b6 40" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0256-01" ] } ], "analysis": { "cardinality": 1589, "char_count": 47313, "ocr_confidence": 0.838, "pagerank": { "raw": 7.820746967182512e-08, "percentile": 0.4579126041711312 }, "sha256": "429a6823ba0b1e60a11edadb1ad3fb72ffc859c22c653f59a28276de928bec54", "simhash": "1:903ee4832a519d07", "word_count": 7402 }, "last_updated": "2023-07-14T17:22:38.419741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "RODERICK T. KENNEDY, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "HARRY CLAY, individually and as natural father of BRE CLAY and AUSTIN CLAY, minor children, Plaintiffs-Appellees, v. NEW MEXICO TITLE LOANS, INC., Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} New Mexico Title Loans, Inc. (Lender) appeals from the district court\u2019s denial of its motion to compel arbitration. The district court ruled that (1) the arbitration clause is substantively unconscionable because it is against public policy and because the appeals clause unfairly benefits Lender over borrowers, and (2) the arbitration provision is ambiguous as to whether Chris \u201cHarry\u201d Clay\u2019s (Borrower) tort claims are subject to arbitration, and the provision is, therefore, unenforceable. We conclude that Borrower\u2019s tort claims are not within the scope of the arbitration provision and that the appeals clause is substantively unconscionable and, therefore, unenforceable. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.\nI. BACKGROUND\nA. Factual Background\n{2} On March 5, 2010, Borrower signed a loan agreement (Agreement) with Lender in which he agreed to pay $3,177.84 for a loan of $2400. He agreed to use his 1999 Dodge Ram truck as collateral to secure the loan. The Agreement included an arbitration provision purporting to apply to \u201cany claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement or the Motor Vehicle . . . securing this Agreement.\u201d Borrower did not pay back the loan when it was due on April 5, 2010. On the evening of May 21, 2010, two employees of Certified Adjusters attempted to repossess the truck on behalf of Lender. The parties dispute the details of the encounter but not the two essential facts: (1) Borrower resisted Certified Adjusters\u2019 attempts to take the vehicle; and (2) one of Certified Adjusters\u2019 employees, Ryan Browning, shot Borrower while Borrower\u2019s daughter watched. As a result, Borrower is unable to walk.\nB. Procedural Background\n{3} Borrower filed a twelve-count complaint against Lender, Certified Adjusters, and Ryan Browning, alleging tort claims including negligence per se, negligent hiring and retention, breach of duty during ultra-hazardous activity, loss of consortium, negligent infliction of emotional distress, and breach ofnon-delegable duty. He also alleged breach of contract by Lender. After providing written notice of intent to compel arbitration, Lender filed a motion and memorandum to stay litigation and compel arbitration in district court. The district court found that the arbitration provision in the Agreement was substantively unconscionable, \u201cboth as a matter of public policy and due to an impermissible \u2018escape hatch\u2019 clause\u201d and, therefore, unenforceable. It also found, in the alternative, that the applicability of the arbitration provision to Borrower\u2019s claims was ambiguous. Since it was ambiguous, the district court \u201c[c]onstru[ed], as it must, this ambiguity against the drafter of the contract, [Lender, and found] that [Borrower\u2019s] allegations do not fall within the scope of the arbitration provision.\u201d\nII. DISCUSSION\n{4} Borrower argues that the arbitration provision in the Agreement is both substantively and procedurally unconscionable because the terms are unreasonably unfair, there was fraud in the inducement, and there was a gross disparity in bargaining power between Borrower and Lender. He asserts further that, even if it were not unconscionable, his claims do not fall within the scope of the arbitration provision. Lender contends that the arbitration provision is not unconscionable because it is not \u201cillegal, contrary to any public policy, or unreasonably favorable to [Lender].\u201d Lender also argues that the plain language of the provision encompasses all of Borrower\u2019s theories of recovery and, therefore, the district court erred in finding ambiguity.\nA. Standard of Review\n{5} \u201cWe apply a de novo standard of review to a district court\u2019s denial of a motion to compel arbitration.\u201d Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, \u00b6 11, 146 N.M. 256, 208 P.3d 901. \u201cAs contracts, [w]e consider [arbitration agreements] as a whole to determine how they should be interpreted.\u201d Medina v. Holguin, 2008-NMCA-161, \u00b6 8, 145 N.M. 303, 197 P.3d 1085 (alterations in original) (internal quotation marks and citation omitted). \u201c[I]t is established law that our appellate courts will affirm a district court\u2019s decision if it is right for any reason, so long as the circumstances do not make it unfair to the appellant to affirm.\u201d Cordova, 2009-NMSC-021, \u00b6 18.\nB. Analysis\n{6} Arbitration is a \u201chighly favored\u201d form of dispute resolution. Santa Fe Techs., Inc. v. Argus Networks, Inc., 2002-NMCA-030, \u00b6 51, 131 N.M. 772, 42 P.3d 1221; see 9 U.S.C. \u00a7 2 (1947); NMSA 1978, \u00a7\u00a7 44-7A-1 to -32 (2001) (Uniform Arbitration Act). \u201cIt promotes both judicial efficiency and conservation of resources by all parties.\u201d Santa Fe Techs., Inc., 2002-NMCA-030, \u00b6 51; see Cordova, 2009-NMSC-021, \u00b6 30.\n{7} The purpose of the Federal Arbitration Act (FAA), 9 U.S.C. \u00a7\u00a7 1-6 (2006), was to combat \u201cwidespread judicial hostility to arbitration agreements.\u201d AT & T Mobility LLC v. Concepcion, __ U.S. ___, ___, 131 S. Ct. 1740, 1745 (2011). Section 2 of the FAA provides that\n[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.\n9 U.S.C. \u00a7 2. Section 2 creates apresumption favoring arbitration. \u201c[(Questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.\u201d Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Under the FAA, \u201cany doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.\u201d Id. at 24-25. A dispute as to whether there is a binding arbitration agreement, however, obviates that presumption. DeArmond v. Halliburton Energy Servs., Inc., 2003-NMCA-148, \u00b6 8, 134 N.M. 630, 81 P.3d 573.\n{8} In spite of these presumptions, construction of arbitration provisions proceeds along typical contract interpretation avenues. \u201cWe have described [Section 2] as reflecting both a liberal federal policy favoring arbitration, and the fundamental principle that arbitration is a matter of contract. In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms[.]\u201d Concepcion, ___ U.S. at ___, 131 S. Ct. at 1745 (internal quotation marks and citations omitted). \u201cEqual footing\u201d means that, Section 2 of the FAA notwithstanding, arbitration provisions are not given any special deference or treatment not accorded other contract terms. See Fiser v. Dell Computer Corp., 2008-NMSC-046, \u00b6 23, 144 N.M. 464, 188 P.3d 1215. State law limitations specific to arbitration provisions are preempted by the FAA. See Doctor\u2019s Assocs., Inc. v. Casarotto, 517 U.S. 681, 688 (1996) (stating that \u201cMontana\u2019s law plac[ing] arbitration agreements in a class apart from any contract, and singularly limiting] their validity\u201d conflicts with the Act and is, therefore, preempted (internal quotation marks omitted)). Arbitration provisions are, however, subject to state law \u201cj/that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. Thus, generally applicable contract defenses . . . may be applied to invalidate arbitration agreements without contravening [Section] 2.\u201d Id. at 686-87 (internal quotation marks and citations omitted).\n{9} The questions before us are whether the arbitration provision or any part thereof is substantively or procedurally unconscionable and whether Borrower\u2019s claims fall within the scope of the provision. Because we think the latter issue is potentially dispositive, we address it first.\n1. Scope of the Arbitration Provision a. Arbitrability\n{10} We start with a basic preliminary question: Who decides whether an issue is arbitrable under the agreement? Generally, questions of arbitrability are within the purview of a court. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002); see \u00a7 44-7A-7(b) (\u201cThe court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.\u201d). If the parties have \u201cclearly and unmistakably\u201d agreed that this issue is subject to arbitration, however, the reviewing court must enforce that agreement without further inquiry. AT & T Techs., Inc. v. Commc\u2019ns Workers of Am., 475 U.S. 643, 649 (1986); see Felts v. CLK Mgmt., Inc., 2011-NMCA-062, \u00b6 18, 149 N.M. 681, 254 P.3d 124 (stating that an agreement to arbitrate the issue of arbitrability is \u201can additional, antecedent agreement . . . and the FAA operates on this additional arbitration agreement just as it does on any other.\u201d (internal quotation marks and citation omitted)), cert. granted, 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633. The Court uses \u201cordinary state-law principles that govern the formation of contracts\u201d to determine whether the parties clearly and unmistakably agreed to arbitrate an issue, including arbitrability. Felts, 2011-NMCA-062, \u00b6 18 (internal quotation marks and citation omitted).\n{11} When there is an agreement to arbitrate arbitrability, also called a \u201cdelegation provision,\u201d \u201ca party must specifically challenge the delegation provision in order for a court to consider the challenge rather than referring the matter to an arbitrator.\u201d Id. \u00b6 20. The challenge need not be made in a specific document, such as the complaint; rather, \u201c[w]hat matters is the substantive basis of the challenge.\u201d Id. \u00b6 29 (internal quotation marks and citation omitted). Our inquiry, then, turns on two questions: (1) was there a clear and unmistakable agreement to arbitrate arbitrability? and (2) did Borrower mount a \u201cspecific challenge\u201d to that agreement? If the answer to both of these questions is yes, the court, rather than an arbitrator, may determine whether the parties agreed to arbitrate the issue at hand.\n{12} In this case, the arbitration provision states:\n(b) What Claims Are Covered: \u201cClaim\u201d means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement or the Motor Vehicle . . . securing this Agreement. ... it also includes disputes about the validity, enforceability, arbitrability or scope of this Arbitration Provision or this Agreement.\n(Emphasis added.) In Felts, the Court held that an arbitration clause that covered \u201cany and all claims . . . arising out of [the] agreement, including disputes as to the matters subject to arbitration\u201d was clear and unmistakable evidence of the parties\u2019 intent to \u201chave an arbitrator decide threshold issues of arbitrability.\u201d Id. \u00b6\u00b6 21, 23 (alteration and internal quotation marks omitted). The language in the arbitration clause in this case is even more clear than in Felts, since it specifies disputes about the \u201cvalidity, enforceability, arbitrability or scope\u201d of the clause.\n{13} Borrower sufficiently challenged the delegation provision in the Agreement. He argues that there was fraud in the inducement based on alleged misrepresentation by Lender of the neutrality of the two organizations identified to administer the arbitration proceedings and the fact that both organizations, the National Arbitration Forum (NAF) and the American Arbitration Association (AAA), had stopped administering arbitration of collections. Borrower maintains that he relied on that representation of neutrality and his reliance was justifiable. In Felts, the plaintiff made a similar argument: she argued, inter alia, that the delegation clause was \u201crendered impossible . . . because the NAF had ceased its consumer arbitration business.\u201d Id. \u00b6 30. There, the Court held that this was a \u201cspecific challenge to the delegation clause\u201d and, therefore, the plaintiff had met her burden to challenge the threshold issue. Id. In keeping with Felts, we conclude that Borrower has challenged the delegation provision.\nb. Borrower\u2019s Tort Claims Are Not Within the Scope of the Agreement\n{14} We turn now to whether Borrower\u2019s claims fall within the scope of the arbitration agreement. We start with the framework used to determine the scope of such an agreement. The general rule was set out in the 1960s by the United States Supreme Court in the Steelworkers Trilogy. United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960). That rule is that \u201carbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.\u201d AT & T Techs., Inc., 475 U.S. at 648 (internal quotation marks and citation omitted). Under contract law, the scope of an arbitration provision \u2014 whether the parties intended to submit to arbitration \u2014 is determined by \u201capplying] the plain meaning of the contract language.\u201d Santa Fe Techs., Inc., 2002-NMCA-030, \u00b6 52. The terms of the agreement itself \u201cdefine the scope of. . . the matters to be arbitrated.\u201d Christmas v. Cimarron Realty Co., 98 N.M. 330, 332, 648 P.2d 788, 790 (1982). More specifically, although \u201c[arbitration clauses... drafted with broad strokes ... require broad interpretation, . . . the scope of the clause itself is limited to the subject matter of the underlying contract.\u201d Santa Fe Techs., Inc., 2002-NMCA-030, \u00b6 55. In order to fall within the scope of the arbitration clause, the claims at issue must bear a \u201creasonable relationship\u201d to the contract in which the arbitration clause is found. See id. \u00b6 52 (\u201cWhen a reasonable relationship between the subject matter of the dispute and the underlying agreement exists, the dispute is within the arbitration provision and should be arbitrated.\u201d).\n{15} The gist of Borrower\u2019s allegations is that Lender \u201cintentionally or recklessly hired [the] co-defendants to enforce their security interestfs]\u201d without appropriate oversight or review of their licensure or expertise. The complaint focuses on the conduct of Certified Adjusters on May 21, 2010, when they attempted to repossess Borrower\u2019s truck and on Lender\u2019s hiring and oversight of Certified Adjusters. Borrower maintains that Lender is vicariously liable under several theories for the consequences of the shooting because Certified Adjusters was working on Lender\u2019s behalf. There are no claims in the complaint pertaining to the loan itself, payments, fees, or other matters addressed in the Agreement.\n{16} The \u201cLoan Agreement, Promissory Note and Security Agreement\u201d signed by Borrower and Lender has thirteen clauses. The preamble to these clauses indicates the names of the lender and borrower, the amount borrowed, the finance charges, annual percentage rate, total payments, fees, the vehicle offered as collateral, and payment schedule. Clauses one through twelve address the parties\u2019 responsibilities with respect to payments, interest rates, finance charges, renewals, warranties, notices, governing law, the collateral, and New Mexico Small Loan Act disclosures. See NMSA 1978, \u00a7 58-15-14.1 (2007). Viewed more broadly, the overall purpose of the Agreement is to formalize the arrangements to provide funds to Borrower and to earn interest and fees for Lender in exchange for the loan. See Nathalie Martin & Ozymandias Adams, Grand Theft Auto Loans: Repossession and Demographic Realities in Title Lending, 77 Mo. L. Rev. 41, 58 (2012); see generally New Mexico Title Loans, http://www.clamex.com.\n{17} Clause thirteen is titled \u201cARBITRATION PROVISION.\u201d The provision states, in relevant part:\n\u201cClaim\u201d means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement or the Motor Vehicle . . . securing this Agreement (\u201cVehicle\u201d). \u201cClaim\u201d has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). Subject to [a clause regarding class action claims], it also includes disputes about the validity, enforceability, arbitrability or scope of this Arbitration Provision or this Agreement. However, \u201cClaim\u201d does not include: (I) our right to enforce our security interest and to obtain possession of the Collateral by seeking a replevin judgment or by using self-help, provided such an action seeks only possession of the Collateral and not a personal monetary judgment against you, or (ii) any individual action in court by one party that is limited to preventing the other party from using a self-help remedy and that does not involve a request for damages or monetary relief of any kind.\n(Emphasis added.)\n{18} We note that, although Lender argues that the arbitration provision is broad and applies to \u201cany claim,\u201d in fact the scope of the provision is limited in several ways. (1) The provision applies only to matters that \u201caris[e] from or relat[e] to\u201d the Agreement or the collateral. See Santa Fe Techs., Inc., 2002-NMCA-030, \u00b6 57 (\u201cWe deem it of utmost importance that the parties\u2019 [agreement does not state in an unlimited manner, . . . that any disputes that may arise between the parties in the future shall be subject to arbitration. Instead, and more narrowly, it covers only those disputes arising out of or relating to the [agreement.\u201d). (2) Lender specifically excluded its \u201cright to enforce [its] security interest and to obtain possession of the Collateral by seeking a replevin judgment or by using self-help.\u201d (3) The \u201cArbitration Provision is not applicable to \u2018small claims\u2019 meaning those claims that either party is entitled to file and maintain in an appropriate small claims court, or your State\u2019s equivalent.\u201d Thus, by its plain terms, the provision does not apply to any and all claims that might arise between Lender and Borrower.\n{19} Lender urges us to conclude from the emphasized language in the arbitration provision that \u201c[t]he terms [of the provision] encompass \u2018any claim\u2019 whether sounding in tort or contract.\u201d Lender argues that, since this language is \u201cclear and unambiguous\u201d and not \u201ccontrary to public policy or unreasonably unfair,\u201d the district court should have applied the Moses H. Cone presumption and resolved the matter in favor of arbitration. See 460 U.S. at 24-25. We are not persuaded for two reasons. First, the presumption applicable in Moses H. Cone does not apply when the parties dispute the existence of an arbitration agreement. See DeArmond, 2003-NMCA-148, \u00b6 8. Furthermore, \u201c[t]he presumption in favor of arbitration cannot operate to compel arbitration of a particular claim in the absence of an agreement to arbitrate a particular claim.\u201d Heimann v. Kinder-Morgan CO2 Co., L.P., 2006-NMCA-127, \u00b6 25, 140 N.M. 552, 144 P.3d 111.\n{20} Second, as discussed, the agreement to arbitrate an issue depends on the intent of the parties. See AT & T Techs., Inc., 475 U.S. at 648. A party may be assumed to have intended to arbitrate issues that are closely related to those governed by the agreement itself, but not those that are unrelated to the agreement, out of the context of the agreement, or outrageous and unforeseeable. A review of cases in this and other jurisdictions illustrates this principle.\n{21} In Santa Fe Tech., Inc., Argus Networks and Santa Fe Technologies planned to compete for a federal contract opportunity together and entered into an agreement to merge once the contract was won. 2002-NMCA-030, \u00b6 4. After Argus Networks replaced Santa Fe Technologies with a different subcontractor on the bidding team and, ultimately, won the contract, Santa Fe Technologies filed a complaint alleging \u201cinterference with prospective contractual relations, usurpation of business opportunity, fraud, and conspiracy to commit the aforementioned torts, among other claims.\u201d Santa Fe Techs., Inc., 2002-NMCA-030, \u00b6\u00b6 8-11. Argus Networks claimed that the merger agreement between the two parties mandated arbitration of these claims because the merger was predicated on winning the contract and, therefore, the merger agreement was \u201crelated to\u201d the federal contract. Id. \u00b6 54. The Court disagreed, stating that \u201c[w]hen we hold [Santa Fe Technologies\u2019] claims up against the [agreement, we do not see overlap.\u201d Id. \u00b6 55. In that case, the agreement pertained solely to the merger of the two companies, not to the federal contract opportunity for which the parties had agreed to collaborate. Id. \u00b6\u00b6 4-10, 55. The Court stated that Santa Fe Technologies \u201cclaims neither relate to the mechanics of the merger ... nor arise from the performance or failure to perform the merger\u201d and that a \u201ccloser connection\u201d was required in order to compel arbitration. Id. \u00b6\u00b6 55-56; see Campos v. Homes By Joe Boyden, L.L.C., 2006-NMCA-086, \u00b6 13, 140 N.M. 122, 140 P.3d 543 (stating claims of misrepresentation regarding open space behind a house were not subject to arbitration pursuant to an arbitration clause in the warranty agreement provided by the seller/builder because the claims arose in a different context than the warranty); Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1516 (10th Cir. 1995) (holding that it would be \u201cabsurd\u201d to require arbitration of claims not \u201ctouching specified provisions\u201d of the underlying contract and that the existence of a contract between the parties was not sufficient to compel arbitration).\n{22} We find the reasoning in Aiken v. World Fin. Corp. of South Carolina, 644 S.E.2d 705 (S.C. 2007), most persuasive. The plaintiff, Mr. Aiken, obtained several loans from World Finance Corporation. Id. at 707. In his loan applications, he provided private information, including his social security number and date of birth. Id. Two years after Mr. Aiken paid off the last loan, employees at World Finance Corporation used his personal information to \u201cobtain sham loans and embezzle the proceeds for the employees\u2019 personal benefit.\u201d Id. Each loan agreement signed by Mr. Aiken contained a broad arbitration clause:\nAll disputes, controversies or claims of any kind and nature between lender and borrower arising out of or in connection with the loan agreement, or arising out of any transaction or relationship between lender and borrower or arising out of any prior or future dealings between lender and borrower, shall be submitted to arbitration and settled by arbitration.\nId. at 707 (emphasis omitted); see id. at 708 n.2 (characterizing this clause as \u201cbroad\u201d). World Finance Corporation sought to compel arbitration of Mr. Aiken\u2019s claims for \u201coutrage and emotional distress, negligence, negligent hiring/supervision, and unfair trade practices\u201d on grounds that they were within the scope of the arbitration agreement because the loan agreements \u201cgave the conspirators access to Aiken\u2019s information in order to carry out their crimes.\u201d Id. at 707-08. The South Carolina Supreme Court rej ected this argument, stating, \u201c[ajpplying what amounts to a \u2018but-for\u2019 causation standard essentially includes every dispute imaginable between the parties, which greatly oversimplifies the parties\u2019 agreement to arbitrate claims between them. Such a result is illogical and unconscionable.\u201d Id. at 708. The court went on to hold that \u201c[t]he mere fact that the dispute would not have arisen but for the existence of the contract. .. is insufficient by itself to transform a dispute into one arising out of or relating to the agreement.\u201d Id. (internal quotation marks and citation omitted). Most significantly, the South Carolina Supreme Court announced a \u201cdefinitive rule\u201d that \u201c[bjecause even the most broadly-worded arbitration agreements still have limits founded in general principles of contract law, this Court will refuse to interpret any arbitration agreement as applying to outrageous torts that are unforeseeable to a reasonable consumer in the context of normal business dealings.\u201d Id. at 709. Applying these principles, the court held that Mr. Aiken\u2019s claims were not subject to the arbitration clause because, by signing the loan agreement, he \u201ccould not possibly have been agreeing to provide an alternative forum for settling claims arising from this wholly unexpected tortious conduct.\u201d Id.\n{23} The court was careful to clarify that it \u201c[did] not seek to exclude all intentional torts from the scope of arbitration.\u201d Id. Rather, tort claims that alleged a breach of the underlying contract would fall within the scope of an arbitration agreementbecause they fall \u201cwithin the contemplation of the parties in agreeing to arbitrate.\u201d Id. It limited its ruling to \u201cthose outrageous torts, which although factually related to the performance of the contract, are legally distinct from the contractual relationship between the parties.\u201d Id.\n{24} Here, Borrower signed an affidavit stating that he did not intend to agree to arbitrate claims such as those arising from the shooting during repossession of his truck. W e do not need to rely on Borrower\u2019s affidavit, however, to conclude that he did not intend for these claims to be arbitrable. Rather, as in Santa Fe Techs., Inc., Campos, and Aiken, the terms of the Agreement provide the context in which the arbitration provision will be interpreted. The plain language of the Agreement reflects a business arrangement between Borrower and Lender for the loan of funds in exchange for fees and interest. It is reasonable that Borrower understood the arbitration provision to apply to matters related to fees, finance charges, payments, renewals, warranties, notices, and so on. Even if Borrower intended to submit to arbitration disputes related to the collateral (clause 4) or default (clauses 7 and 8), it is not reasonable to conclude that he intended to give up his right to a jury trial if he was shot during the repossession. See Rogers-Dabbs Chevrolet-Hummer, Inc. v. Blakeney, 05-IA-00125-SCT, 950 So.2d 170, 176 (Miss. 2007) (agreeing with the plaintiffs argument that \u201cno consumer in an arms-length negotiation, absent duress, would contract away his constitutional rights to judicial redress and a jury trial when making a purchase if he believed it gave the merchant the green light to commit fraud, forgery, and identity theft, while at the same time precluding the consumer from having his day in court\u201d).\n{25} The only underlying fact common to both the Agreement and most of the claims at issue is the existence of the contract including provisions for repossession of the vehicle on default. With the exception of Borrower\u2019s claim of breach of contract, addressed below, none of his claims address other terms of the Agreement. The fact that the Agreement provided for repossession does not bring Borrower\u2019s claims within the arbitration provision. As stated in Coors and Aiken, the mere existence of a contract between the parties is insufficient to subject these claims to the arbitration provision. Here, the facts are similar to those in Aiken. In that case, Mr. Aiken agreed voluntarily to provide personal information as part of the loan process; the court held that the illegal use of that information was outside of the scope of the arbitration provision. Aiken, 644 S.E.2d at 707, 709. Similarly, Borrower agreed voluntarily that repossession was a valid remedy for Lender in the Agreement. Illegal or negligent conduct during repossession, however, is outside the scope of this agreement and, therefore, the arbitration provision as well.\n{26} Count V of Borrower\u2019s complaint alleges that Lender breached the contract because the Agreement provided for repossession of the collateral \u201caccording to law,\u201d and Lender failed to conduct or ensure that Certified Adjusters conducted the repossession of his truck in accordance with NMSA 1978, Section 55-9-609(b)(2) (2001) (repossession attempt must not breach the peace) and NMSA 1978, Section 61-18A-5(B) (1993) (a valid license is required to attempt repossession). We agree with the Aiken reasoning that a claim that is dependent on the underlying contract itself is within the scope of the arbitration provision. 644 S.E.2d at 709; accord Chelsea Family Pharmacy, PLLC v. Medco Health Solutions, Inc., 567 F.3d 1191, 1198 (10th Cir. 2009) (stating that in assessing whether a matter is arbitrable, \u201cwe evaluate the factual underpinnings of the complaint rather than merely considering the labels attached to each of the causes of action it contains\u201d).\n{27} Finally, we note that the district court ruled that the arbitration provision was ambiguous as to whether it addressed Borrower\u2019s claims and, construing that ambiguity against the drafter of the Agreement, denied the motion to compel arbitration. See Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, \u00b6 19, 131 N.M. 100, 33 P.3d 651 (\u201c[W]e strictly construe a contract against the party who drafted the contract in order to protect the rights of the party who did not draft it.\u201d). As discussed, we conclude that the scope of the provision is not ambiguous.\n{28} In conclusion, we hold that claims based on conduct that is unforeseeable to the parties at the time of entering into an agreement including an arbitration provision are not within the scope of the provision as a matter of contract law. With the exception of his breach of contract claim, Borrower\u2019s claims are not subject to the arbitration provision.\n2. Substantive Unconscionability\n{29} We turn next to whether the arbitration provision or a portion thereof is substantively unconscionable. Because we agree with the district court that the appeals clause is substantively unconscionable, but disagree that the entire provision is unenforceable, we examine the issue in detail and affirm in part and reverse in part.\n{30} Borrower also asserts that the arbitration provision is procedurally unconscionable and the result of fraud in the inducement. Because we determine that Borrower\u2019s claims are outside the scope ofthe Agreement and that the appeals clause of the arbitration provision is substantively unconscionable, and because Borrower provides no serious support for these arguments, we see no need to address them.\n{31} \u201cUnconscionability is an equitable doctrine, rooted in public policy, which allows courts to render unenforceable an agreement that is unreasonably favorable to one party while precluding a meaningful choice of the other party.\u201d Cordova, 2009-NMSC-021, \u00b6 21. Unconscionability can be found through both procedural and substantive analyses. Id. The former \u201cexamines the particular factual circumstances surrounding the formation of the contract,\u201d whereas the latter is concerned with \u201cthe legality and fairness of the contract terms themselves.\u201d Id. \u00b6\u00b6 22-23. An agreement may be unconscionable, and therefore unenforceable, based on one or both of these analyses. Id. \u00b6 24.\n{32} Borrower argues that the arbitration provision is substantively unconscionable, because \u201cthe \u2018escape hatch\u2019 appeal clause is grossly unfair.\u201d The district court found that the \u201cimpermissible escape hatch\u201d clause rendered the provision unconscionable, and that the provision was unconscionable \u201cas a matter of public policy.\u201d\n{33} \u201cContract provisions that unreasonably benefit one party over another are substantively unconscionable.\u201d Id. \u00b6 25. To assess unconscionability, we examine whether \u201cthe contract terms are commercially reasonable and fair, the purpose and effect of the terms, the one-sidedness of the terms, and other similar public policy concerns.\u201d Id. \u00b6 22. An \u201cescape hatch\u201d clause is one that allows a party to avoid arbitration or an arbitration decision because it provides for appeal of a final arbitrated decision, reserves rights to judicial remedies for certain claims for one party, or allows alteration of the arbitration provision retroactively by one party. See Padilla v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, \u00b6 2, 133 N.M. 661, 68 P.3d 901; Cordova, 2009-NMSC-021, \u00b6 25; Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 206 (5th Cir. 2012). Escape hatch clauses may be acceptable if \u201ctruly equal in their effect on the parties.\u201d Padilla, 2003-NMSC-011, \u00b6 10. Borrower contends that the escape hatch clause in Lender\u2019s arbitration provision unfairly benefits Lender over him because it provides for appeals only when the amount of a claim exceeds $ 100,000 or grants or denies any claim for injunctive relief. We start by assessing whether the clause unfairly benefits one party over the other. See Cordova, 2009-NMSC-021, \u00b6 21. We determine that it does.\n{34} The clause in question reads as follows:\nThe arbitrator\u2019s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the Claim exceeds $100,000 or grants or denies any claim for injunctive relief, any party can appeal the award to a three-arbitrator panel administered by the Administrator which shall reconsider any aspect of the initial award requested by the appealing party.\nBorrower contends that the clause is unfairly one-sided because, although it allows for appeals of claims over $100,000 by both parties, Lender is more likely to appeal a claim that meets this threshold. He contends that Padilla is controlling here. In Padilla, the Court held that a clause that provided for appeal of an arbitration decision only when the claim exceeded the minimum liability coverage required by the Mandatory Financial Responsibility Act (MFRA),NMSA 1978, \u00a7\u00a7 66-5-201 to -239 (1978, as amended through 2001), was unconscionable. See Padilla, 2003-NMSC-011, \u00b6 2. The Court held that \u201c[ajlthough facially equal, such escape hatch clauses are not truly equal . . . because both parties are bound by a low award, when an insurance company is unlikely to appeal, and not bound when there is a high award, when an insurance company is more likely to appeal.\u201d Id. \u00b6 10. The Court was concerned that the provision would have a \u201cchilling effect\u201d on an insured\u2019s rights under the MFRA, the purpose of which was to \u201cplac[e] the insured in the same position for the recovery of damages as he or she would have been in had the tortfeasor carried liability insurance.\u201d /d \u00b6\u00b6 11-12. Thus, the Court\u2019s decision rested on both unfairness and public policy grounds. See id. \u00b6\u00b6 10, 13.\n{35} We agree with Borrower that the clause in question here is analogous to that in Padilla. There, as here, the arbitration provision reserves the right of appeal to claims above a certain amount at which the drafter of the provision is more likely to appeal than the consumer. The benefit to the drafter is apparent: small claims, over which it is unlikely to initiate proceedings anyway, are required to be arbitrated, whereas it is free to litigate large claims in any way it chooses. Although the consumer also has this option, the consumer\u2019s claims are more likely to fall below the threshold and, therefore, be subject to arbitration only. The arbitration provision\u2019s \u201cescape hatch\u201d clause is unfair because it benefits the lender more than the borrower.\n{36} Lender argues that Padilla is not controlling because Borrower had the option to reject arbitration entirely within fifteen days of the date of signing the Agreement and because the decision was based on policy grounds not present here. The arbitration provision included a \u201cright to reject\u201d clause through which Borrower had the option to reject the arbitration provision in its entirety by \u201cmailing [Lender] a written rejection notice . . . within fifteen (15) days after the date of [the] Agreement.\u201d Lender argues that this \u201cright to reject\u201d prevented the unfairness found in Padilla. Borrower counters that the \u201cright to reject\u201d clause does not overcome the unfairness in the terms because (1) a borrower is unlikely to exercise this right, or (2) it is illusory. We agree with Borrower that, in the context of a title loan agreement arbitration provision, a borrower prepared to pay 360% annual percentage rate and over $700 in fees for a $2400 loan is unlikely to exercise the \u201cright to reject,\u201d particularly when it cannot be done as an option within the Agreement itself but instead must be done in a separate writing. (We note that the Agreement included an \u201coptional\u201d fee of $17. It is not clear how a borrower would exercise the apparent ability to opt out of this fee, but the fact that it is noted as \u201coptional\u201d on the form itself demonstrates that Lender, at least theoretically, was aware of ways to allow borrowers to exercise a \u201cright to reject\u201d at the time of signing.).\n{37} These arguments by the parties, however, miss the point. Although the relative unlikelihood of Borrower exercising the right to reject (in fact, he did not reject it) is important to an assessment of the fairness of the arbitration provision overall, in the context of the \u201cescape hatch\u201d clause analysis it is insignificant. This is because it is the clause itself that limits Borrower\u2019s choices. The clause that formed the basis for the district court\u2019s decision is focused on the choices available to the parties on appeal. It is precisely because the clause limits Borrower\u2019s options while not limiting those of Lender to the same degree that the clause is unconscionable.\n{38} To the extent that Lender argues that Padilla is not controlling because its holding was based on policy arguments specific to the MFRA, we disagree. The Padilla Court noted that it was the essential unfairness of the terms that was contrary to public policy behind the MFRA. See Padilla, 2003-NMSC-011, \u00b6 10. Therefore, Padilla is not distinguishable from this case on grounds that it is limited to motor vehicle insurance cases. Furthermore, in Cordova, the Court applied the Padilla holding in the loan agreement context to conclude that the defendant\u2019s \u201cone-sided arbitration provisions\u201d were unconscionable because they were \u201cso unfairly and unreasonably one-sided that [they are] substantively unconscionable.\u201d Cordova, 2009-NMSC-021, \u00b6 32.\n{39} We note that the Agreement bears another resemblance to that in Cordova. In Cordova, the contract term on which the case turned was a paragraph not included in the arbitration provision. Id. \u00b6\u00b6 3-4. In addition to the \u201cbroadly stated\u201d arbitration provision, that paragraph provided for the lender\u2019s remedies in case of default by the borrower. Id. Under that clause, the lender reserved its \u201cremedies in an action at law or in equity, including but not limited to, judicial foreclosure or repossession. [The l]ender may also exercise its other remedies provided by law (such as, . . . the right of self-help repossession under Article 9 of the Uniform Commercial Code.)\u201d Id. \u00b6 4 (internal quotation marks omitted). Under this clause, in spite of the arbitration provision, \u201cthe lender alone had the exclusive and unlimited alternative to seek any judicial remedies it might otherwise have available to it in law or in equity.\u201d Id. Although neither Borrower nor Lender raise this issue, the Agreement contains an arbitration provision similar to that in Cordova. Under the clause, in the event of default, Lender may \u201cforeclose upon its lien and liquidate any [collateral . . . according to law, including by using self-help repossession [and] exercise all other rights, powers and remedies given by law.\u201d This clause is not as broadly worded as the clause in Cordova, nor as specific regarding the judicial remedies reserved. See id. Nevertheless, this clause reinforces Lender\u2019s exclusion of repossession from the definition of a \u201cclaim\u201d and appears to reserve to it rights not available to Borrower.\n{40} Finally, the parties disagree as to the appropriate remedy for unconscionability of the appeal clause. Lender argues that we must follow Padilla, where the unconscionable clause was severable, leaving the remainder of the provision intact. Borrower argues that the entire arbitration provision must be struck under Cordova. When a term is unconscionable, a court \u201cmay refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.\u201d Padilla, 2003-NMSC-011, \u00b6 15 (internal quotation marks and citation omitted). The critical determination is whether a term is \u201ccentral to the arbitration scheme and cannot be severed without substantially altering the method of dispute resolution contractually agreed on by the parties.\u201d Rivera v. Am. Gen. Fin. Servs., Inc., 2011-NMSC-033, \u00b6 56, 150 N.M. 398, 259 P.3d 803. In Padilla, the Court held that an appeal provision was severable because it governed \u201conly a post-award proceeding, not the general conduct of the arbitration itself.\u201d 2003-NMSC-011, \u00b6 18 (internal quotation marks and citation omitted). In contrast, in Cordova, the Court held that the default clause was not severable because the \u201cinvalidity . . . involves the arbitration scheme itself, not just the procedures for appeal.\u201d 2009-NMSC-021, \u00b6 40.\n{41} We agree with Lender that the \u201cescape hatch\u201d clause at issue here is severable because it addresses post-arbitration rights, not the conduct of arbitration itself. We hold, therefore, that the appeal clause is severable, unconscionable, and unenforceable. The remainder of the arbitration provision is unchanged. Because the appeal clause is severable, we reverse the district court\u2019s ruling that the entirety of the arbitration clause is unconscionable and unenforceable.\n3. Order in Which Claims Should Proceed\n{42} Having concluded that the arbitration provision is unchanged except for the appeals clause, we turn now to address the order in which claims should proceed. When some claims are arbitrable and others not, as here, the question is whether and in what order the claims should proceed. Chelsea Family Pharmacy, 567 F.3d at 1200. Federal and state policies favoring arbitration require that we \u201crigorously enforce agreements to arbitrate, even if the result is \u2018piecemeal\u2019 litigation]!]\u201d Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985). Assuming under this rule that the breach of contract claim is required to be arbitrated, there remains a question as to whether the nonarbitrable claims must be stayed pending resolution of that claim. Chelsea Family Pharmacy, 567 F.3d at 1200. \u201cStay of the entire proceeding is appropriate when resolution of the arbitrable claim will have a preclusive effect on the nonarbitrable claim or when the arbitrable claims predominate the lawsuit and the nonarbitrable claims are of questionable merit.\u201d Id. (internal quotation marks and citation omitted); see Rex, Inc. v. Manufactured Hous. Comm, of N.M., 119 N.M. 500, 505, 892 P.2d 947, 952 (1995) (holding that collateral estoppel applies to arbitration decisions when the arbitration proceedings allowed \u201cpresentation of evidence and argument substantially similar in form and scope to judicial proceedings\u201d (internal quotation marks and citation omitted)).\n{43} In evaluating on appeal the question of whether nonarbitrable claims should be stayed pending resolution of arbitrable claims, courts have taken two paths. In some cases, the appellate court made a determination as to which claims should be stayed. See Chelsea Family Pharmacy, 567 F.3d at 1200 (\u201cBecause the two claims in this case are distinct and unrelated, [the plaintiffs] arbitrable . . . claim cannot have a preclusive effect on the nonarbitrable ... claim; one does not \u2018predominate\u2019 over the other. [I]t would be inappropriate to stay the [nonarbitrable] claim pending resolution of the [arbitrable] claim.\u201d). In other cases, the appellate court remanded to the district court for \u201cdetermination ofwhether a resolution of [the] arbitrable claims will have a preclusive effect on the nonarbitrable claims thatremain subject to litigation.\u201d Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d 775, 785 (10th Cir. 1998).\n{44} Here, the arbitrable claim does not predominate the lawsuit; it is only one of twelve claims. Whether the breach of contract claim may have a preclusive effect on the other claims, however, is not as clear-cut. Applicability of collateral estoppel requires factual findings that \u201c(1) the party against whom collateral estoppel is asserted musthave been a party in .. . the original action; and (2) the two cases must have concerned the same ultimate issue or fact, which was (a) actually litigated, and (b) necessarily determined in the first suit.\u201d DeLisle v. Avallone, 117 N.M. 602, 605, 874 P.2d 1266, 1269 (Ct. App. 1994). Furthermore, because arbitration proceedings often have limited \u201cprocedural safeguards, the court should be particularly vigilant in examining whether the arbitration proceeding provided the parties with a full and fair opportunity to litigate the issues.\u201d Rex, 119 N.M. at 505, 892 P.2d at 952. The district court is in the best position to hear argument and make factual findings on these issues. See Wood v. Millers Nat'l Ins. Co., 96 N.M. 525, 529, 632 P.2d 1163, 1167 (1981) (discussing the district court\u2019s balancing of judicial economy and the rights of the parties with respect to a stay). Therefore, we remand to the district court for determination of whether nonarbitrable claims should be stayed pending resolution of arbitrable claims.\nIII. CONCLUSION\n{45} We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion. The district court\u2019s ruling as to the scope of the arbitration provision is affirmed as to all claims except the breach of contract claim. With the exception of his breach of contract claim, Borrower\u2019s claims are not subject to the arbitration provision of the Agreement because they are not within the scope of issues contemplated by the parties when they agreed to arbitrate disputes related to the Agreement and because it is against public policy to require claims so extraneous to the purpose of the Agreement to be subject to its requirements. The district court\u2019s ruling as to the unconscionability of the \u201cescape hatch\u201d clause is affirmed, but we reverse the decision to strike the entirety of the arbitration provision. Instead, that clause alone is struck and the remainder of the arbitration provision is unchanged. We remand to the district court for determination ofwhether the nonarbitrable claims should be stayed pending resolution of the breach of contract claim.\n{46} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Judge\nLINDA M. VANZI, Judge", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Fine Law Firm Mark Fine Albuquerque, NM for Appellees", "Butt Thornton & Baehr PC Emily A. Franke Jane A. Laflin Ra\u00fal P. Sedillo Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, September 20, 2012,\nNo. 33,765\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMCA-102\nFiling Date: July 19, 2012\nDocket No. 31,356\nHARRY CLAY, individually and as natural father of BRE CLAY and AUSTIN CLAY, minor children, Plaintiffs-Appellees, v. NEW MEXICO TITLE LOANS, INC., Defendant-Appellant.\nFine Law Firm Mark Fine Albuquerque, NM for Appellees\nButt Thornton & Baehr PC Emily A. Franke Jane A. Laflin Ra\u00fal P. Sedillo Albuquerque, NM for Appellant" }, "file_name": "0645-01", "first_page_order": 661, "last_page_order": 674 }